Congressional Record: May 21, 2003 (Senate)
Page S6789-S6843
NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2004
The ACTING PRESIDENT pro tempore. Under the previous order, the
Senate will resume consideration of S. 1050, which the clerk will
report.
[...]
Amendment No. 779
Mr. WARNER. On behalf of Senator Allard, I offer an amendment on the
protection of the operational files of the National Security Agency
that would strike section 1035 of S. 1050 and replace it with this
amendment. It is cleared on both sides.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from Virginia [Mr. Warner], for Mr. Allard,
proposes an amendment numbered 779.
The amendment is as follows:
(Purpose: To provide a substitute for section 1035, relating to the
protection of the operational files of the National Security Agency)
Strike section 1035 and insert the following:
SEC. 1035. PROTECTION OF OPERATIONAL FILES OF THE NATIONAL
SECURITY AGENCY.
(a) Consolidation of Current Provisions on Protection of
Operational Files.--The National Security Act of 1947 (50
U.S.C. 401 et seq.) is amended by transferring sections 105C
and 105D to the end of title VII and redesignating such
sections, as so transferred, as sections 703 and 704,
respectively.
(b) Protection of Operational Files of NSA.--Title VII of
such Act, as amended by subsection (a), is further amended by
adding at the end the following new section:
``operational files of the national security agency
``Sec. 705. (a) Exemption of Certain Operational Files From
Search, Review, Publication, or Disclosure.--(1) Operational
files of the National Security Agency (hereafter in this
section referred to as `NSA') may be exempted by the Director
of NSA, in coordination with the Director of Central
Intelligence, from the provisions of section 552 of title 5,
United States Code, which require publication, disclosure,
search, or review in connection therewith.
``(2)(A) In this section, the term `operational files'
means--
``(i) files of the Signals Intelligence Directorate, and
its successor organizations, which document the means by
which foreign intelligence or counterintelligence is
collected through technical systems; and
``(ii) files of the Research Associate Directorate, and its
successor organizations, which document the means by which
foreign intelligence or counterintelligence is collected
through scientific and technical systems.
``(B) Files which are the sole repository of disseminated
intelligence, and files that have been accessioned into NSA
Archives, or its successor organizations, are not operational
files.
``(3) Notwithstanding paragraph (1), exempted operational
files shall continue to be subject to search and review for
information concerning--
``(A) United States citizens or aliens lawfully admitted
for permanent residence who have requested information on
themselves pursuant to the provisions of section 552 or 552a
of title 5, United States Code;
``(B) any special activity the existence of which is not
exempt from disclosure under the provisions of section 552 of
title 5, United States Code; or
``(C) the specific subject matter of an investigation by
any of the following for any impropriety, or violation of
law, Executive order, or Presidential directive, in the
conduct of an intelligence activity:
``(i) The Committee on Armed Services and the Permanent
Select Committee on Intelligence of the House of
Representatives.
``(ii) The Committee on Armed Services and the Select
Committee on Intelligence of the Senate.
``(iii) The Intelligence Oversight Board.
``(iv) The Department of Justice.
``(v) The Office of General Counsel of NSA.
``(vi) The Office of the Inspector General of the
Department of Defense.
``(vii) The Office of the Director of NSA.
``(4)(A) Files that are not exempted under paragraph (1)
which contain information derived or disseminated from
exempted operational files shall be subject to search and
review.
``(B) The inclusion of information from exempted
operational files in files that are not exempted under
paragraph (1) shall not affect the exemption under paragraph
(1) of the originating operational files from search, review,
publication, or disclosure.
``(C) The declassification of some of the information
contained in exempted operational files shall not affect the
status of the operational file as being exempt from search,
review, publication, or disclosure.
``(D) Records from exempted operational files which have
been disseminated to and referenced in files that are not
exempted under paragraph (1), and which have been returned to
exempted operational files for sole retention shall be
subject to search and review.
``(5) The provisions of paragraph (1) may not be superseded
except by a provision of law which is enacted after the date
of the enactment of the National Defense Authorization Act
for Fiscal Year 2004, and which specifically cites and
repeals or modifies such provisions.
``(6)(A) Except as provided in subparagraph (B), whenever
any person who has requested agency records under section 552
of title 5, United States Code, alleges that NSA has withheld
records improperly because of failure to comply with any
provision of this section, judicial review shall be available
under the terms set forth in section 552(a)(4)(B) of title 5,
United States Code.
``(B) Judicial review shall not be available in the manner
provided for under subparagraph (A) as follows:
``(i) In any case in which information specifically
authorized under criteria established by an Executive order
to be kept secret in the interests of national defense or
foreign relations is filed with, or produced for, the court
by NSA, such information shall be examined ex parte, in
camera by the court.
``(ii) The court shall determine, to the fullest extent
practicable, the issues of fact based on sworn written
submissions of the parties.
``(iii) When a complainant alleges that requested records
are improperly withheld because of improper placement solely
in exempted operational files, the complainant shall support
such allegation with a sworn written submission based upon
personal knowledge or otherwise admissible evidence.
``(iv)(I) When a complainant alleges that requested records
were improperly withheld because of improper exemption of
operational files, NSA shall meet its burden under section
552(a)(4)(B) of title 5, United States Code, by demonstrating
to the court by sworn written submission that exempted
operational files likely to contain responsible records
currently perform the functions set forth in paragraph (2).
``(II) The court may not order NSA to review the content of
any exempted operational file or files in order to make the
demonstration required under subclause (I), unless the
complainant disputes NSA's showing with a sworn written
submission based on personal knowledge or otherwise
admissible evidence.
``(v) In proceedings under clauses (iii) and (iv), the
parties may not obtain discovery pursuant to rules 26 through
36 of the Federal Rules of Civil Procedure, except that
requests for admissions may be made pursuant to rules 26 and
36.
``(vi) If the court finds under this paragraph that NSA has
improperly withheld requested records because of failure to
comply with any provision of this subsection, the court shall
order NSA to search and review the appropriate exempted
operational file or files for the requested records and make
such records, or portions thereof, available in
accordance with the provisions of section 552 of title 5,
United States Code, and such order shall be the exclusive
remedy for failure to comply with this subsection.
``(vii) If at any time following the filing of a complaint
pursuant to this paragraph NSA agrees to search the
appropriate exempted operational file or files for the
requested records, the court shall dismiss the claim based
upon such complaint.
``(viii) Any information filed with, or produced for the
court pursuant to clauses (i) and (iv) shall be coordinated
with the Director of Central Intelligence before submission
to the court.
``(b) Decennial Review of Exempted Operational Files.--(1)
Not less than once every 10 years, the Director of the
National Security Agency and the Director of Central
Intelligence shall review the exemptions in
[[Page S6838]]
force under subsection (a)(1) to determine whether such
exemptions may be removed from a category of exempted files
or any portion thereof. The Director of Central Intelligence
must approve any determination to remove such exemptions.
``(2) The review required by paragraph (1) shall include
consideration of the historical value or other public
interest in the subject matter of a particular category of
files or portions thereof and the potential for declassifying
a significant part of the information contained therein.
``(3) A complainant that alleges that NSA has improperly
withheld records because of failure to comply with this
subsection may seek judicial review in the district court of
the United States of the district in which any of the parties
reside, or in the District of Columbia. In such a proceeding,
the court's review shall be limited to determining the
following:
``(A) Whether NSA has conducted the review required by
paragraph (1) before the expiration of the 10-year period
beginning on the date of the enactment of the National
Defense Authorization Act for Fiscal Year 2004 or before the
expiration of the 10-year period beginning on the date of the
most recent review.
``(B) Whether NSA, in fact, considered the criteria set
forth in paragraph (2) in conducting the required review.''.
(c) Conforming Amendments.--(1) Section 701(b) of the
National Security Act of 1947 (50 U.S.C. 431(b)) is amended
by striking ``For purposes of this title'' and inserting ``In
this section and section 702,''.
(2) Section 702(c) of such Act (50 U.S.C. 432(c)) is
amended by striking ``enactment of this title'' and inserting
``October 15, 1984,''.
(3)(A) The title heading for title VII of such Act is
amended to read as follows:
``TITLE VII--PROTECTION OF OPERATIONAL FILES''.
(B) The section heading for section 701 of such Act is
amended to read as follows:
``protection of operational files of the central intelligence agency''.
(C) The section heading for section 702 of such Act is
amended to read as follows:
``decennial review of exempted central intelligence agency operational
files.''.
(d) Clerical Amendments.--The table of contents for the
National Security Act of 1947 is amended--
(1) by striking the items relating to sections 105C and
105D; and
(2) by striking the items relating to title VII and
inserting the following new items:
``Title VII--Protection of Operational Files
``Sec. 701. Protection of operational files of the Central Intelligence
Agency.
``Sec. 702. Decennial review of exempted Central Intelligence Agency
operational files.
``Sec. 703. Protection of operational files of the National Imagery and
Mapping Agency.
``Sec. 704. Protection of operational files of the National
Reconnaissance Office.
``Sec. 705. Protection of operational files of the National Security
Agency.''.
The PRESIDING OFFICER. Is there further debate on the amendment?
If not, without objection, the amendment is agreed to.
The amendment (No. 779) was agreed to.
Mr. WARNER. I move to reconsider the vote.
Mr. LEVIN. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
[...]
